The Wills Act 1970 (WA) does not allow for the electronic signing of wills.

Wills are excluded under the Electronic Transactions Act 2011 (WA) (‘ET Act’) as the Electronic Transactions Regulations 2012 (WA) (‘Regulations’) under part 2 division 2.¹

Conclusion

Electronic signatures for wills are not allowed in WA.

Relevant papers on the WA position

The submission by the Law Council of Australia provides a “high-level comparative analysis of the jurisdictional exemptions” of Electronic Transactions Acts between the states.² Their analysis of the law in WA indicates the execution of wills is exempt from the application of the ET Act. Part 2 division 2 of the Regulations provides s 10 of the ET Act does not apply to the execution of a will.

Legislative extracts

Wills Act 1970 (WA)

8 Execution generally

Subject to sections 17 and 20 and Parts XA, X and XI, a will is not valid unless —

• (a) it is in writing; and
• (b) it is signed by the testator or signed in the testator’s name by some other person in the testator’s presence and by the testator’s direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator’s will; and
• (c) the testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and
• (d) the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary.

Electronic Transactions Act 2011 (WA)

10 Signatures

(1) If, under a law of this jurisdiction, the signature of a person is required, that requirement is taken to have been met in relation to an electronic communication if —

• (a) a method is used to identify the person and to indicate the person’s intention in respect of the information communicated; and
• (b) the method used was either —
  (i) as reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or
  • (ii) proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence;
• and
• (c) the person to whom the signature is required to be given consents to that requirement being met by the use of the method mentioned in paragraph (a).

(2) This section does not affect the operation of any other law of this jurisdiction that makes provision for or in relation to requiring —

• (a) an electronic communication to contain an electronic signature (however described); or
• (b) an electronic communication to contain a unique identification in an electronic form; or
• (c) a particular method to be used in relation to an electronic communication to identify the originator of the communication and to indicate the originator’s intention in respect of the information communicated.

Electronic Transactions Regulations 2012 (WA)

4 Exemptions from Part 2 Division 2 — requirements and permissions

(1) Part 2 Division 2 of the Act does not apply to —

• (a) a requirement or permission relating to the creation, execution or revocation of a will, codicil or other testamentary instrument; or

¹ Electronic Transactions Regulations 2012 (WA) pt 2 div 2.

² Business Law Section of the Law Council of Australia, Submission to Attorney-General’s Department, Attorney-General’s Department consultation on the Electronic Transactions Act (27 March 2023)